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People v. Cioffi

Supreme Court of New York, Appellate Division

June 28, 1955

People
v.
Cioffi

[142 N.Y.S.2d 527] Walter E. Dillon, Asst. Dist. Atty., New York City, of counsel (Daniel V. Sullivan, Dist. Atty., Bronx County, New York City), for respondent.

Otto F. Fusco, New York City, for defendant-appellant.

Before PECK, P. J., and COHN, CALLAHAN, BREITEL and RABIN, JJ.

Page 204

[142 N.Y.S.2d 528] CALLAHAN, Justice.

Defendant was indicted by the Grand Jury of Bronx County on four misdemeanor counts, two for impairing the morals of minors, and two for assault in the third degree. The first count specified that on the 28th day of January, 1954, the defendant unlawfully permitted a female child one, 'Mary Doe', [1] of the age of 11 years to be placed in a situation where her morals would be impaired; a second count charged assault in the third degree upon said 'Mary Doe' upon the same date; the third count charged impairing the morals of one 'Jane Roe', an infant then of the age of 12 years; and the fourth count charged assault in the third degree upon the said 'Jane Roe', both on the same date.

The charges were joined in one indictment, pursuant to the provisions of section 279 of the Code of Criminal Procedure, as crimes of the same or similar character.

The case was tried before the court and a jury. The defendant was convicted on both counts of assault, but acquitted on the other counts. On the 13th day of July, 1954, a judgment was entered reciting the conviction for assault in the third degree on the second and fourth counts and adjudging that the defendant be committed to the New York County Penitentiary under count two for an indeterminate period. The judgment stated that the sentence on the fourth count was 'deferred.' Defendant appeals from each and every part of the judgment, and asks for reversal of the entire judgment of conviction. While the defendant urges several assignments of error, we find that there is merit only in the contention that his rights were violated upon the trial when 'Jane Roe', two other girls who had been in her company, and a city detective were all permitted to testify that a few days after January 28, 1954, a group of photographs was examined by the girls at the suggestion of the detective and the girls selected the defendant's photograph from the group.

The People contend that we may not consider this claim of error. Their position is that although the defendant has been found guilty of two separate crimes, judgment has been entered on only one of them because of the deferment of sentence on the fourth count. The evidence concerning the photographs, the People say, was received only in support of the fourth count, so that the question of error in that regard is not presently reviewable.

We would be most reluctant to concur in this view. It would mean that the defendant would be compelled to take two appeals

Page 205

to determine his rights, or to move to compel the court to impose sentence on the fourth count as preliminary to appeal from his conviction thereon. It is our opinion, under all the circumstances of the case, that section 517 [142 N.Y.S.2d 529] of the Code of Criminal Procedure affords the defendant the right to appeal from the entire judgment and disposition of both the second and the fourth counts of the indictment, even though sentence was imposed on only one of them. At least, this would seem to be the common-sense view in a case such as this where we have a multi-count indictment, one trial, a single judgment and a complete record on appeal.

Section 517 of the Code of Criminal Procedure provides:

' § 517. In what cases appeal may be taken by defendant

'An appeal may be taken by the defendant as of right from a judgment on a conviction in a criminal action ...


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